Ghobrial v Assaf
[2012] QDC 34
•8 March 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Ghobrial v Assaf [2012] QDC 34
PARTIES:
MAGDY SAMAAN GHOBRIAL
(Applicant)AND
SALIM ASSAF
(Respondent)FILE NO/S:
494/11
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
DELIVERED ON:
8 March 2012
DELIVERED AT:
Southport
HEARING DATE:
7 March 2012
JUDGE:
Samios DCJ
ORDER:
1. The period of limitation for the appellant’s action be extended to 16 February 2012.
2. Costs reserved.
CATCHWORDS:
COUNSEL:
Y. Chekirova for the Applicant.
D. Crews for the Respondent.
SOLICITORS:
Hunter Solicitors for the Applicant.
Hofstee Lawyers for the Respondent.
This is an application for the period of limitation to be extended. The applicant was born on the 31st of August of 1960. On the 1st of April 2006, when he was 45 years of age, his father-in-law assaulted him with a knife. The applicant suffered stab wounds to his back, chest, elbow and a slash wound to his left hand. As a result he was admitted to the Gold Coast hospital at Southport where he spent seven days in hospital. The first four days were in intensive care.
He was advised his injuries were not life threatening however between the 1st of April and the 7th of April 2006 he underwent an operation to his left hand. On the 18th of April 2006 he was interviewed by police in respect of the assault and he provided a statement. He kept making inquiries with the police as to the progress of the respondent's prosecution. The applicant states the police were reluctant to answer his queries.
On 6 October 2006 he underwent a further operation to his left hand to try and repair the nerve damage. He states the assault caused him distress and sadness. He felt isolated and helpless especially when he kept thinking that the respondent was not punished for what he had done to him.
Prior to the assault he used to work as a security guard. After what the respondent had done to him, he says he became very suspicious and distrustful of people. On the 22nd of November 2006 he left Australia and he returned to live with his family in Egypt. He left because he was concerned for his safety and because he did not know anybody else in Australia other than the defendant and his - other than the respondent and his estranged wife. The respondent was the applicant's father-in-law.
Also the applicant's father became ill after he found out what happened to the applicant. The applicant wanted to return to his family in Egypt where he felt safe and where he could receive support following his ordeal.
On or about the 23rd of November 2008 he returned to Australia. Upon his return he tried to follow up with the police what had happened regarding the respondent being charged over the assault. Again, he says, the police were uncooperative in assisting him. He was advised the police had closed the investigation without prosecuting the respondent.
When he returned to Australia he sought further medical attention in relation to the injury to his left hand which had not improved. A further operation to his left hand to try and repair the nerve damage was carried out at the Gold Coast hospital on 19 May 2010. The applicant ended up making a complaint to the police about the way the case was handled and the fact that the respondent had not been charged. He made the complaint in about March or April 2009 and lodged a formal complaint in May 2009.
He says the police took a long time to investigate his complaint but eventually they reopened the case and charged the respondent on the 11th of December 2009. The respondent went before the Magistrates Court on the 28th of September 2010 and the matter was handed up to the District Court. A hearing date was set in the District Court for the 2nd of August 2011 and the defendant ended up pleading guilty to the charges against him and was convicted and sentenced on the 2nd of August of 2011 in the District Court.
The applicant states that until the respondent was made to face the charges in court, which first went before the court on the 28th of September 2010, he did not think or know that he could make any claim against the respondent for compensation. On or about the 1st of November 2010 he sought advice from his solicitors, Hunter Solicitors, regarding the possibility of pursuing a claim for compensation in respect of the injuries sustained in the assault perpetrated by the respondent.
When he saw Hunter Solicitors he was advised that the normal three year limitation period for a civil claim had expired. He states that on the 9th of December 2010 he ended making a complaint to the Police Professional Practices manager in relation to how the investigation was handled by the police and the fact that the respondent had not been charged initially following the assault upon him.
A letter from the Queensland Police Service is exhibited to the applicant's affidavit. His complaint was said to justify disciplinary action against one officer for their role in the original complaint and the subsequent failure to prosecute. Another officer apparently had resigned and no further action could be taken against that officer under the circumstances.
The applicant states that following his initial appointment with Hunter Solicitors, the solicitors organised to obtain copies of his medical records. He was also sent to appointments for examination by an orthopaedic surgeon and a psychologist. He saw the psychologist, Dr Norman Barling, on 10 December 2010. During his consultation he outlined to him certain aspects of his life, both before and after the assault was committed.
On the 14th of February 2011 his solicitors received a report from Dr Barling which was then on forwarded to him. He states he has had an opportunity to read the report of Dr Barling dated 2 February 2011. He states Dr Barling has accurately recorded in that the report those matters that he discussed with him. He confirms the factual matters outlined in the report are true and correct.
He states that although he had received some counselling prior to his consultation with Dr Barling, until he read the report he was not aware that he was suffering from chronic post traumatic stress disorder or a major depressive disorder. He states he did not realise he had a claim worthwhile pursuing until he had an opportunity to read Dr Barling's report.
He states as the police had previously closed the investigation and refused to prosecute the respondent he felt he was let down by the Australia legal system. Further, his English is poor and he does not understand the Australia law. He is continuing to see Dr Barling for psychological treatment in respect of the above psychiatric illnesses which he has suffered as a result of the assault.
Further, he is continuing to consult the Gold Coast Hospital in relation to the nerve damage to his left hand. He saw a specialist at that hospital on the 4th of October 2011. He has been referred to the Robina Hospital for pain management but has been advised that, other than that, there is nothing more they can do and the nerve damage to his left hand is permanent.
The report of Dr Barling confirms that Dr Barling relied on a clinical interview and psychometric testing. He saw the applicant on December 10 and 17 of 2010. It is Dr Barling's opinion that the applicant has developed psychological injuries as a result of being assaulted and stabbed by his father-in-law. After spending six days in hospital he was released into the community with no place to stay as he could not return to his former home and family.
He has remained socially isolated, depressed and traumatised since the assault and has been unable to work. He has lost his wife and young family and feels incomplete, unfulfilled and inadequate. With such low self esteem he has difficulty coping with life's challenges and coping with his symptoms.
The applicant also reported to Dr Barling that he was frustrated by the lack of action by the Queensland Police Service and the time delay in charging his assailant and having his day in court. The lack of resolution of the legal component of the matter has had a further detrimental effect on his psychological wellbeing.
Dr Barling states the applicant has sought counselling from a psychologist and has made small steps towards recovery. He states the applicant is likely to need prescription medication for his psychological injuries and continuing therapy. Therapeutic interventions may take between 30 to 40 consultations on a fortnightly basis in order to improve his conditions and assist with the processing/resolution of emotional trauma.
On the hearing of the application the respondent solicitor filed an affidavit. Exhibited to his is a report from Dr Mortimer regarding the respondent. This report from Dr Mortimer refers to the respondent as being an 83 year old gentleman who is very unwell with multiple health issues causing him considerable pain and distress along with early signs of dementia. This, combined with his poor English, would make it very difficult to contribute in any meaningful way to proceedings.
As is apparent, the police investigated the matter, although not to the satisfaction of the applicant and it would appear, from the letter exhibited to his affidavit, two police officers had failed in their duties in investigating the applicant's complaint. There are police statements from the applicant and the applicant's wife, or former wife as she may now be, giving her version of the events when he was stabbed.
There are also statements from the police officers as to their investigation in the matter. These are available for any proceeding that may take place in the future. There is also a witness, a Mr Cairney, who has provided a statement to the police.
The application relies on section 30 and 31 of the Limitation of Actions Act 1974. Section 30 provides:
"For the purposes of this section and sections 31, 32, 33 and 34, a) the material facts relating to a right of action include the following:
i) The fact of the occurrence of negligence, trespass, nuisance, a breach of duty on which the right of action is founded.
ii) The identity of the person against whom the right of action lays.
iii) The fact that the negligence, trespass, nuisance or breach of duty causes personal injury.
iv) The nature and extent of the personal injury so caused.
v) The extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty."
In this application, the applicant relies upon the nature and extent of the personal injury so caused as the material fact relating to a right of action. That is, until the applicant received Dr Barling's report, which I find was on or about the 16th of February 2011, he was not aware of the nature and extent of the personal injury so caused from the assault.
Subparagraph (b) of subsection (1) of section 30 provides:
"Material facts relating to a right of action are of a decisive character if, but only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing:
i) That an action of the right of action would, apart from the effect of the expiration of a period of limitation, have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action and;
ii) That the person whose means of knowledge is in question ought, in the persons own interests, and taking the person's circumstances in account - into account, to bring an action on the right of action."
In this matter I am satisfied, on the applicant's evidence which I accept, that he did not know and was not aware of the nature and extent of the personal injury so caused to him by the assault until he received Dr Barling's report and that those material facts relating to the right of action were of a decisive character in this case.
As he says, it was not until he received Dr Barling's report that he appreciated that he had a claim worthwhile pursuing. I accept that to be the case. Paragraph (c) of subsection(1) of section 30 also provides:
"A fact is not within the means of knowledge of a person at a particular time if, but only if:
i) The person does not know the fact at that time and;
ii) As far as the fact is able to be found out by the person the person has taken all reasonable steps to find out the fact before that time."
In this matter I am satisfied that the fact was not within the means of knowledge of the applicant until on or about the 16th of February 2011. I am satisfied he did not know of the fact at that time and as far as the fact was able to be found out by him he had taken all reasonable steps to find out the fact before that time.
In my opinion, his background must be taken into account. He was not born in Australia. He was not familiar with the language and with the legal system. He did not appreciate that he could claim compensation. It was not until the respondent was brought before a court on the 28th of September 2010 that he appreciated he could make a claim against the respondent for compensation. He then saw the solicitors and matters progressed reasonably after that point in time.
Section 31(2) of the Act provides:
"Where an application to a court by a person claiming to have a right of action to which this section applies, it appears to the court a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action and b) that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation, the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."
As I have said, I am satisfied that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation of the action and that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation.
In my opinion, I have a discretion to extend the limitation period so that it expires at the end of one year after the relevant date. In this matter it is submitted that there is prejudice for the respondent in this case because of his advanced age and his conditions. In my opinion, while the time that has transpired may have contributed to the respondent's position, I do not accept that the respondent is prejudiced in the broad sense in this case.
I have pointed to the police statements which are available, including the respondent's daughter's statement. There is also an eyewitness available and all medical reports of the applicant are available and have been exhibited to the affidavit of Melanie Jane Dennis which has been filed in support of the application.
During submissions the question arose at to what date I should extend the limitation period to. In inquired whether a statement of claim had been filed and was advised that one has not yet been filed. Applicant's counsel, Ms Chekirova, submitted that section 43 permitted the course taken to date.
Her Honour, Judge McGinness, on 26 September 2011 ordered that the Court's leave to proceed pursuant to section 43(1) of the Personal Injuries Proceedings Act 2002 was granted to the plaintiff. Then conditions were imposed, one of those was that the application for extension of time be brought by the plaintiff within six weeks of the date of grant of the order.
Another condition was that the plaintiff was to comply with chapter 2, part 1 of the Personal Injuries Proceedings Act 2002 by serving a part 1, form 1 notice of claim for damages on the defendant within one month from the date of an order for an extension of time being granted. Ms Chekirova also referred me to the decision of Davison v. Queensland (2006) HCA 21, (2006) 227 Australian Law Reports 1, and (2006) Australian Law Journal Reports 946.
I have come to the view that I need not decide the effect of her Honour Judge McGinness' orders. It is my opinion that the applicant has shown sufficient evidence in this application and has satisfied me of the requirements of the Limitation of Actions Act for an extension of the limitation period to 16 February 2012. A copy of Judge McGinness' order has been made Exhibit 1 in this application.
I consider that I should, in the circumstances, exercise my discretion in the applicant's favour and I order the period of limitation for his action be extended to 16 February 2012.
Costs will be reserved.
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